HADRIAN PROPERTY INVESTMENT LTD v SECRETARY OF STATE FOR LEVELLING UP HOUSING & Anor

At the permission stage of a statutory planning review, an issue is arguable if it crosses the threshold requiring substantive consideration; the court does not determine its ultimate merits.

Whether the judicial concept of a planning unit, used in analysing change of use under the Town and Country Planning Act 1990, also governs permitted development rights under the General Permitted Development Order 2015 is an arguable issue requiring determination at a substantive hearing.

A planning inspector’s reasons are legally adequate where they intelligibly address the principal controversial issues and explain why proposed conditions would not resolve identified design shortcomings. Planning judgment does not ordinarily require a further opportunity for procedural collaboration.

The claimant challenged a composite decision by a planning inspector dismissing two linked appeals concerning proposed redevelopment of a former police station in Newcastle upon Tyne. The applications involved conversion and extension of existing buildings for residential, retail, dental, restaurant and takeaway uses.

The claimant sought permission for statutory review on two grounds. Ground 1 concerned whether the planning unit approach governed the assessment of permitted development rights under the General Permitted Development Order 2015, particularly Schedule 2 Part 3 and Class MA. Ground 2 alleged inadequate reasons and procedural unfairness concerning design, materials and proposed conditions.

Permission had previously been refused on the papers. On reconsideration, the central questions were whether either ground was arguable and what directions and costs orders should follow.

1. Ground 1. Permission for statutory review was granted in relation to Appeal A and Ground 1. The court treated the issue as one of arguability only. The planning unit approach is judicially adopted for determining whether there has been a material change of use under section 55(1) of the Town and Country Planning Act 1990, and for certain same-class use questions under section 55(2)(f). Those questions concern whether there has been development requiring planning permission.
2. The court identified a distinct question under Article 3(1) of the General Permitted Development Order 2015 and section 59 of the Town and Country Planning Act 1990: whether permitted development rights are engaged under Schedule 2 Part 3, including Class MA. It was arguable that the planning unit concept should not automatically be imported into that separate statutory scheme. No authority or commentary addressing that issue had been identified. The issue was therefore directed to a substantive hearing.
3. Ground 2. Permission was refused. The inspector had given adequate and intelligible reasons addressing the principal design issues. Her reasoning was not confined to the proposed dark cladding colour. It addressed the wider materials palette, external remodelling, window openings and architectural detailing. Her conclusion that those features were integral to the overall design explained why the proposed condition was not sufficient.
4. The matters were matters of planning judgment. There was no arguable public-law irrationality or legal error, and no arguable obligation to take an additional procedural step to permit further collaboration or amendment of the design.
5. Permission was refused for the decision relating to Appeal B and granted for Appeal A, restricted to Ground 1. Directions were given for detailed grounds, evidence and preparation for a substantive hearing. Half of the Secretary of State’s earlier costs, £2,667, was ordered to be paid by the claimant; the balance was costs in the case.

Permission for statutory review was refused on the papers by HHJ Belcher on 4 April 2022. On oral reconsideration, the High Court granted permission in relation to Appeal A and Ground 1, and refused permission in relation to Appeal B and Ground 2.